October 23, 2018

SMS-TCPA
SMS TCPA Class Action

A nationwide class action lawsuit involving the receipt of SMS text messages that were allegedly sent in violation of the Telephone Consumer Protection Act (“TCPA”) was recent filed against Las Vegas’ Treasure Island hotel.  This SMS TCPA class action involves Treasure Island’s use of a virtual concierge service.

What were the practices that gave rise to the SMS TCPA lawsuit?

Treasure Island recently began utilizing a concierge service called Ivy that is designed to serve as a one-stop platform to answer questions that guests have concerning the hotel and their visit to Las Vegas.  Much like other popular artificial intelligence assistants, such as Siri, Alexa, and Google Assistant, Ivy interacts with guests by responding to guests’ questions instantaneously, albeit through SMS text messages instead of through interactive voice functionality.  To this end, Ivy allows guests to send SMS questions from anywhere and at any time and get an immediate response.  Treasure Island guests receive their first text message from Ivy immediately after check-in.  This initial text message advertises the variety of services that the Ivy system can provide to the guest.  Despite the apparent convenience and utility of the service to the guests, however, Treasure Island is being sued for Ivy’s transmission of SMS text messages based on the fact that this initial text was allegedly sent without the prior express written consent of the recipients.  While guests provide Treasure Island with their respective cell phone numbers at the time of making an online reservation with the hotel, the plaintiff suing Treasure Island alleges that this act alone is insufficient to provide the hotel with authorization to send text messages using an automatic telephone dialing system for telemarketing purposes.

Maintain Your Business’ SMS TCPA Compliance

We have written extensively about the increased interest (from class action attorneys and regulators alike) in telemarketing practices as SMS text messaging becomes a ubiquitous form of communication.  While the hotel’s use of a concierge service utilizing cutting-edge artificial intelligence technology gives this lawsuit the veneer of novelty, at its core, this case merely reinforces the reality that is it critical to obtain valid TCPA consent before sending text messages to consumers.  In today’s regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff or federal regulator brings a SMS TCPA lawsuit.

If you are interested in learning more about this topic, need to review your text message marketing practices and procedures or if you are the subject of a TCPA text messaging lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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